Thursday, March 14, 2013

Privacy Laws and Citizen Journalism: ACORN and Romney's 47% Speech

by Nomad

I wanted to take a moment to follow up on a post I recently wrote on James O'Keefe III and the ACORN scandal.

In a somewhat related story, CBS has reported details about that notorious secret recording of Mitt Romney last year. The controversial video became known as the "47%" speech.

As it turns out, the recorder of that video was not a reporter (even self-designated like O'Keefe) but a bartender who worked at the site in Florida where the speech was given.

In the speech he told his audience of wealthy campaign contributors that 47% of the population would never vote for him. That percentage of the population was politically unimportant to him.

"My job is not to worry about those people. I'll never convince them that they should take personal responsibility and care for their lives."

On the surface, he had a point. And the results of the election confirmed it. The problem was the background to those remarks, who spoke them and to whom they were addressed. These factors behind his speech accounted for in the decline in his popularity of the candidate. He was none to popular in the first place.

I saw one comment that interested me since I had recently investigated the James O'Keefe case in which he was sued by a former ACORN employee for recording him without permission.

The comment points out that since O'Keefe was arrested on Invasion of Privacy Laws, the law should apply to the bartender as well. The comment reads:

This guy should be brought up on charges for filming someone without there knowledge. If the Acorn fiasco taught us anything, it was that it was illegal to film anyone without there knowledge. Then the people in power get a video that was to there advantage and the rule dosnt [sic] apply. Figure that. Illegal is only illegal when? The line is getting pretty blurry.

It's a valid argument and something that troubled me when I wrote the post.

In Florida, as with 11 other states, it is illegal to record a person without their permission- which is obviously what happened. Romney would never have given his permission to record the speech. In fact, according to the article:

He told his dinner guests that his remarks were off the record, but he did not repeat the warning to the catering staff.

The Invasion of Privacy laws are not unlimited and absolute as the commenter seems to be believe. There are perfectly legitimate exceptions to the Invasion law. The exception in the Romney speech case is pretty obvious. It is called the "sphere of privacy." According to decisions in previous cases,

the newsgatherer is liable when he invades a "sphere of privacy" -- such as a person's home.. -- which the person reasonably believes to be off limits to the news media.

As a candidate making a public (or at least, semi-public) speech it was unreasonable for Romney to have expected any kind of confidentiality. (That's what made it such a dumb thing to say.) It was not a private home, for instance. or a doctor's office or a telephone call. It is not an intrusion into Romney's privacy. Nobody filmed him parading around in his birthday suit on his 150-foot yacht, for instance.

So then, how much privacy does a speaker at semi-public event deserve? One can't really speak at an event as a candidate running for office and arbitrarily call "off the record."

Are any comments about how he would govern not in the public interest? Would the privacy laws apply if Romney had told his audience that he had lied about his taxes? or that he accidentally killed somebody? Normally, health issues are generally considered private for your average citizen but not in the case of a man we choose to lead the nation. Prior to giving their vote isn't the public entitled to know at least some private information? (Especially one whose honesty has been repeatedly questioned.)

In contrast, in the O'Keefe case, the defendant purposefully engineered the set-up for the implicit intent to record embarrassing material (we are speaking of the O'Keefe's form of journalism). On the other hand, the bartender, according to a Huffington Post report, had not planned to distribute the video. It was only after he heard Romney's remarks, he says, that he felt the public had a right to know. How could he have known what Romney was going to say before he began to record? There was no deceptive editing as with O'Keefe's videos.

However, newsworthiness is according to the law not a justification for a real intrusion. Who determines what is newsworthy and what is not? In the O'Keefe case, especially, the newsworthiness was completely manufactured and upon closer inspection, the news found to be grossly inaccurate.

Looking at it from a different angle. In the O'Keefe matter, it is also worth asking whether the ACORN employee should have expected a "sphere of privacy?" He was in fact addressing a member of the public that he barely knew. The only privacy in this case, critics would argue, is information that would be incriminating to the organization.

Probably not. And that was the mistake he made. He could not speak "off the record" any more than Romney could.

Of course, there's a problem with that. The courts never got a chance to debate and decide that finer point.The case was settled, don't forget.

The attorneys of Mr. O'Keefe must have thought the employee had an arguable and reasonable expectation of privacy since they agreed to settle out of court. While O'Keefe said in a statement that he admitted no liability, there's no getting around the fact that he did agree to pay $100,000 to settle the case. As a rule of law, in civil case, a settlement does not mean liability but according to conventional wisdom, the innocent do not plea bargain and certainly do offer a public apology (as O'Keefe was forced to do as part of the settlement.)

I suspect that these are not the last questions we shall hear of the Invasion of Privacy laws. O'Keefe questioned the constitutional legitimacy of the types of laws.

For his part, Supreme Court Justice Antonin Scalia believes that there is no constitutional right to privacy at all and flatly told reporters that he believes the key precedent in Invasion of Privacy laws (Griswold v. Connecticut, 381 U.S. 479 (1965) was wrong.

There is no right to privacy in the Constitution. No generalized right to privacy.

That would mean, if challenged in the Supreme court, the present Invasion of Privacy laws could be struck down as unconstitutional. If Justice Scalia had his way, that is.Furthermore, there never will be a constitutional right to privacy. Both data-snooping corporations, like Facebook, and government authorities like Department of Homeland Security, would fight it every step of the way.At least on an individual level. When it comes to government or corporate confidentiality, it's quite a different story.

But that opens up another conundrum for the conservative justices of SCOTUS, If corporations are people too, as one candidate famously said, then do they have any more expectation of privacy than any other citizen? Why?

I, as an individual, can't for example make all my friends sign letters of confidentiality- enforceable by law- without violating their freedom of speech, but corporations do it everyday.

No, the issue of privacy is a weighty one and it will not go away. And just because we choose not to discuss the matter doesn't mean it isn't being decided by somebody else.

Ultimately, Mitt Romney is quite within his right to initiate a lawsuit against the bartender. There's nothing (outside of common sense) that should stop him. But It isn't likely he would win that case.And the image of a rich bully dragging a minimum wage bartender into court about remarks he made about how those people" refuse to take personal responsibility wouldn't be the kind of publicity most people would like. .

Of course, Romney doesn't really have to worry about any further damage to his reputation which, after the election, was torn to shreds.

_____________________

So what do you think about Invasion of Privacy Laws? Do they apply to politicians as well? What are the limits to your privacy? Where do you draw the line?

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